United Lines Tel. Co. v. Grant

• Decision Date: 17 January 1893
• Citation: 32 N.E. 1005,137 N.Y. 7
• Parties: UNITED LINES TEL. CO. v. GRANT, Sheriff.
• Court: New York Court of Appeals Court of Appeals

137 N.Y. 7

32 N.E. 1005

UNITED LINES TEL. CO.

v.GRANT, Sheriff.

Court of Appeals of New York.

Jan. 17, 1893.

Appeal from supreme court, general term, first department.

Action by the United Lines Telegraph Company against Hugh J. Grant, sheriff of the city and county of New York, to enjoin defendant from enforcing a warrant issued to him for the collection of an assessment on plaintiff's property. From an order and judgment of the general term affirming a judgment entered at special term February 18, 1892, dismissing the complaint with costs, plaintiff appeals. Affirmed.

Andrew Wesley Kent, for appellant.

S. W. Rosendale, Atty. Gen., for respondent.

FINCH, J.

This action was brought in equity to obtain an injunction restraining the sheriff of the city and county of New York from executing a warrant of collection issued by the comptroller of the state to enforce the payment of an assessment imposed upon the plaintiff under and by virtue of the act of 1884 (chapter 534) and that of 1885, (chapter 499,) amended in 1886, (chapter 503.) The assessment was for the plaintiff's share of the expenses incurred in building a subway under the streets of the city, and placing therein the electric wires which overhang such streets and imperil the safety of the people. The complaint has two aspects. It alleges- First, that the statutes whose authority was invoked are unconstitutional; and, second, that, if not, their directions have been materially disregarded in the action taken under them, and the grounds on which equitable relief is sought are that there is no adequate remedy at law; that a collection of the warrant, as threatened, will produce an irreparable injury to the plaintiff's business; and that the money, when collected and paid into the treasury of the state, cannot be recovered back. The complaint was dismissed, and that judgment has been affirmed by the general term. I think the decision was right. There was an adequate remedy at law, and no sufficient ground for the demand of equitable relief. If the subway statutes are unconstitutional, they are null and void for every purpose, and simply do not exist as authority for any act, and the plaintiff may resist, in the ordinary way, any trespasser who interferes with its property. There is no such authority in a state officer as to protect him from the fate of a trespasser when he directs the seizure of the citizen's property without the shadow of a legal right and he is no more safe when he acts under a void statute than when he acts without any. Where he has an authority, but deviates from it erroneously, and when acting judicially, he has protection, but he cannot act judicially where he has no authority to act at all. In Merritt v. Read, 5 Denio, 352, the liability of an officer issuing process absolutely void was explicitly and fully recognized, and in Bellinger v. Gray, 51 N. Y. 610, we held a supervisor liable as a trespasser for issuing an illegal and unauthorized tax warrant. Not only the comptroller issuing the void process, but the sheriff also, would have been liable for a seizure of the plaintiff's property. The protection given to the collecting officer is where his process emanates from a competent judicial authority, and is regular on its face. He is not bound to look beyond it, and may assume its validity. But the comptroller has no general judicial authority, so as to bring his warrant within the rule of Hallock v. Dominy, 69 N. Y. 239, where the officer was protected under process regular on its face, although the law under which it was issued was unconstitutional, because the magistrate had a general judicial authority. Here the warrant was void on its face, if plaintiff's theory is correct. It recites in terms the authority upon which it was founded, as being the act in question, and the comptroller had no general...